Donald Trump has vowed to fill the Supreme Court vacancy left by Ruth Bader Ginsburg’s death without delay. If he succeeds, the US president will have given the American right an opportunity to reshape the law on issues including abortion, gun control and affirmative action.
Ginsburg’s death last Friday aged 87 sets up an ideological swing on the court last seen almost 30 years ago when Clarence Thomas, viewed as the most rightwing justice, replaced Thurgood Marshall, a liberal hero who championed the civil rights movement.
With the loss of Ginsburg, the Supreme Court’s liberal wing has been reduced to just three members, sharply curtailing their influence while giving their conservative peers a freer hand to tilt further to the right.
The shift of the US high court to a solid 6-3 conservative majority could mean dramatic constitutional changes and enduring legal victories for Republicans.
“Conservatives have been fighting for this day our entire lives,” said Mike Davis, a former top Republican Senate judiciary staffer who helped install Mr Trump’s previous Supreme Court appointee, Brett Kavanaugh.
In the short term, the shift has implications for litigation over the Affordable Care Act, Barack Obama’s signature healthcare policy, set to be heard by the court in mid-November. It could also come to bear on any legal disputes between Mr Trump and his Democratic challenger, Joe Biden, over the election itself.
Beyond that, the reality of a court controlled by conservatives for decades to come will have profound implications for US constitutional law. Previously, the conservative justices could not afford to lose a single vote, but a new majority with three Trump appointees would have more room for manoeuvre.
“When you start getting six justices who are conservative, that changes the calculus. If one of the six crosses over, you still have a 5-4 majority,” said John Malcolm of the conservative Heritage Foundation.
“This would be the largest bloc of non-leftwing justices probably since the 1930s,” added Ilya Somin, a law professor at George Mason University, though he cautioned that such comparisons were not exact given the evolving ideas about “left” and “right” since then.
One of the main areas of focus will be abortion rights. Conservatives have long detested Roe vs Wade, the landmark 1973 ruling that enshrined a right to abortion, and Mr Trump has promised that he would only select justices who are opposed to Roe.
“At the very least . . . the court would be more likely to uphold various abortion restrictions than before, and there’s a real chance that Roe vs Wade would simply be overruled,” said Mr Somin.
Even short of a dramatic move to overturn that decision, a conservative-dominated court could fundamentally alter access to abortion in the US in narrower ways.
In the most recent term, the Supreme Court narrowly struck down a Louisiana law that imposed restrictions on abortion providers, with Chief Justice John Roberts joining the liberals. He voted on the grounds of upholding the precedent of a 2016 abortion case, even though he disagreed with it.
Such victories would no longer be within the grasp of liberals. “Once you lose the Ginsburg vote, and it gets replaced with a vote to overturn Roe vs Wade, it doesn’t matter what the chief justice votes any more,” said Kimberly Mutcherson, co-dean of Rutgers Law School.
She predicted that conservative state legislators and legal activists would accelerate efforts to impose more severe abortion restrictions. Such laws may not only appear before a 6-3 Supreme Court, but also be judged by Trump appointees in the lower courts — a quarter of all federal appeals court judges were appointed by Mr Trump.
Elsewhere, the court could move further to strike down gun controls and cement a conservative view of the 2nd amendment as protecting an individual’s right to own firearms.
In the most recent term, the court turned away several gun rights cases. CNN reported that the conservative wing did not want to risk hearing a case and having Mr Roberts vote with the liberals. Such concerns would be less pressing in a 6-3 court.
Affirmative action laws would come under pressure, as would the power of the government to restrain corporations. The court, which dramatically loosened campaign finance law in 2010, could stymie Democratic efforts to reimpose restrictions on money in elections.
“It’s not like the liberals are going to lose every single battle in the court, but there’s going to be some areas of the law where we will start to see some fundamental change,” said Lee Epstein, a professor at Washington University.
For Democrats, this reality forces a stark reappraisal of the US political landscape. Whereas Republican voters in the past were more likely to view the Supreme Court as a key election issue, now it is liberal voters who might be motivated to express their concerns.
“The debate we’re having is about whether the rights and protections Americans have gained over the years will be undone by a more conservative court,” said Dianne Feinstein, the ranking Democrat on the Senate judiciary committee, in a statement on Monday.
For Republicans, it is a moment of great opportunity. Mr Trump’s presidency has brought them two Supreme Court justices already, Neil Gorsuch and Mr Kavanaugh. And now it may bring a third.
“This much more than the Gorsuch nomination or even the Kavanaugh nomination has the potential to shift the court,” said Ilya Shapiro, a director at the conservative Cato Institute.